Sunday, July 03, 2011

Gaxiola trial moves to the next phase on the road to a potential death penalty

Albert Gaxiola
(pool photo by
Jill Torrance/
Arizona Daily Star)

The guilty verdicts in Pima County Superior Court last Friday for former Arivaca resident Albert Robert Gaxiola have been perceived by some to be the “end of a two-year roller coaster ride” for the community of Arivaca.

Perhaps a famous quote from a November 1942 speech by Prime Minister Winston Churchill is more illustrative of the situation. Churchill told the House of Commons and those listening on the radio: “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” 

Gaxiola, 44, was found guilty on two counts of first-degree murder and six other charges in connection with the May 30, 2009, deaths of Raul “Junior” Flores and his daughter, Brisenia, 9. Earlier this year, Jason Eugene Bush and Shawna Forde were found guilty on the same charges in separate trials. They both ended up with death sentences imposed by the juries hearing the evidence of their crimes.


According to Arizona Revised Statute 13-751, a sentence of death may be imposed if just one of the aggravating circumstances that have been alleged against a defendant charged with first-degree murder is proven by evidence presented to the jury. In this case the state has alleged the following aggravating circumstances:

1. The defendant has been or was previously convicted of a serious offense, whether preparatory or completed.

2. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.

3. The defendant has been convicted of one or more other homicides.

4. The defendant was an adult at the time the offense was committed or was tried as an adult and the murdered person was under 15 years of age.

During the trials for Forde and Bush, the attorneys simply presented arguments to the jury that the aggravating factors alleged had been proven during the presentation of evidence in the first phase of the trial. The juries in those trials returned, within minutes, verdicts that made those defendants eligible for the death penalty.

Potential schedule

After the guilty verdicts were returned last Friday, Judge John S. Leonardo asked counsel for the state and defense to project their expectations for the second and potential third phase of the proceedings so that he could give the jurors an idea of scheduling. “We do not have any additional evidence that we intend to present during the aggravation phase,” said Deputy County Attorney Kellie Johnson.

The defense has other plans for the second phase of the trial. “We had planned on possibly calling Det. (Juan Carlos) Navarro and possibly Det. (Jill) Murphy,” said defense counsel Jack L. Lansdale. “Primarily, that’s related to the pecuniary gain aggravator.”

Prior to the start of deliberations that led to the guilty verdicts, four of the 16 jurors that had been hearing evidence in the case were selected to be alternates. That’s because state law provides that only 12 jurors may engage in deliberations that lead to verdicts. Originally, seven males and nine females were seated to hear testimony. Prior to the start of deliberations late Thursday, four female jurors were designated as alternates.

Alternate jurors

The alternates were excused, but not released from service. In fact, the reading of the verdicts Friday afternoon was delayed in order to allow the four alternate jurors to be present in the rear of the courtroom. The four alternates will listen to the evidence presented in the second phase and if necessary the third phase of the trial. They will not be called upon to deliberate unless there is a problem that would prevent a member of the jury designated to deliberate was unable to continue.

It is anticipated that the defense will present evidence in the potential third phase starting sometime on Wednesday, July 6. The last witness anticipated by the defense during the potential third phase of the trial is expected to testify on Tuesday, July 12. The 12 deliberating jurors could get the case late on July 12. The verdicts they would consider are life in prison or death by lethal injection. The verdicts rendered by the jury are final and are not advisory. There is no time limit regarding the length of jury deliberations.

At the conclusion of the second and potential third phase, Judge Leonardo will set a sentencing date for the remaining six counts and for the two murder counts if the jury returns verdicts of life prison.

Finally, as with the Forde and Bush cases and for any case where the defendant is sentenced to death the case is automatically appealed to the Arizona Supreme Court.